BILL REQ. #:  S-0031.3 

Read first time 01/29/2007.   Referred to Committee on Agriculture & Rural Economic Development.

     AN ACT Relating to the use of conservation easements; amending RCW 36.70A.060 and 36.70A.070; adding a new chapter to Title 64 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that it is in the best interest of the state to find innovative and economically sustainable ways to conserve and protect productive agricultural lands, critical wildlife habitat, and other natural resources.
     (2) The legislature further finds that the diminishing stock of productive agricultural lands can be preserved through the creation of conservation easements that limit the amount of land available for intensive development.
     (3) The legislative further finds that working natural resources and wildlife habitat areas can be protected by the same conservation easements that protect existing agricultural lands.
     (4) The legislature recognizes the unique interests and knowledge that private property owners have about their land and about the most effective means available to protect the wildlife habitat and natural resources on that land.
     (5) The legislature intends to protect the use and value of productive agricultural property and the wildlife habitat and other natural resources on that property by encouraging voluntary, cooperative farmland preservation and environmental enhancement programs with willing property owners.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Conservation easement" or "easement" means an interest in real property acquired and held by someone other than the owner of that property that imposes affirmative obligations or limitations on the parties including:
     (a) Retaining or protecting natural resources;
     (b) Assuring the availability of the property for agricultural, forest, recreational, or open-space use;
     (c) Protecting the natural, scenic, or open-space values of the real property; or
     (d) Maintaining or enhancing the air or water quality on or around the property.
     (2) "Contract" or "agreement" means a written contract or agreement containing the terms and conditions of a conservation easement affecting real property that has been executed by the owner of the real property and the holder of the easement and recorded in the same manner that conveyances of real property are recorded under RCW 65.08.070.
     (3) "Holder" means:
     (a) A governmental body empowered to hold an interest in real property under the laws of this state or the United States; or
     (b) A charitable corporation, charitable association, or charitable trust, the purposes or powers of which include assuring the availability of real property for agricultural, forest, recreational, or open-space use, retaining or protecting natural resources, protecting the natural, scenic, or open-space values of real property, or maintaining or enhancing air or water quality on or around the real property.
     (4) "Third-party right of enforcement" means a right provided in an easement agreement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust that is not a holder of the interests governed by the agreement.

NEW SECTION.  Sec. 3   (1) Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements affecting real property.
     (2) No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under an easement agreement before it is accepted by the holder and recorded in the same manner that conveyances of real property are recorded under RCW 65.08.070.
     (3) Except as provided in section 4(2) of this act, an easement is unlimited in duration unless the agreement creating it provides otherwise.
     (4) An interest in real property that exists at the time an easement is created is not impaired by the easement agreement unless the owner of that interest is a party to the easement and specifically consents to it.

NEW SECTION.  Sec. 4   (1) An action affecting a conservation easement may be brought by:
     (a) An owner of an interest in the real property burdened by the easement;
     (b) A holder of the easement;
     (c) A person who has a third-party right of enforcement in the easement agreement; or
     (d) Any other person specifically authorized by law.
     (2) This chapter does not affect the power of a court of competent jurisdiction to modify or terminate a conservation easement in accordance with the principles of law and equity.

NEW SECTION.  Sec. 5   A conservation easement is valid even though:
     (1) It is not an inheritable interest in the real property;
     (2) It can be or has been assigned to another holder under the terms of the easement agreement;
     (3) It contains provisions that have not been recognized traditionally at common law;
     (4) It imposes a negative burden on either party;
     (5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
     (6) The benefit does not touch or concern real property.

NEW SECTION.  Sec. 6   (1) This chapter applies to any interest that complies with this chapter and was created after the effective date of this section, whether designated as a conservation easement, covenant, equitable servitude, restriction, easement, or otherwise.
     (2) This chapter applies to any interest created before the effective date of this section if it would have been enforceable had it been created after the effective date of this section, unless retroactive application contravenes the Constitution or laws of this state or the United States.
     (3) This chapter does not invalidate any interest that is enforceable under another law of this state, whether designated as a conservation easement, covenant, equitable servitude, restriction, easement, or otherwise.

NEW SECTION.  Sec. 7   (1) An easement may provide that development rights acquired by a holder through a conservation easement may be transferred to another party under any applicable state law or local ordinance that provides for the transfer of development rights.
     (2) Unless or until development rights or other interests acquired by a holder through a conservation easement are transferred under subsection (1) of this section, payments for those rights or interests may be amortized over a period and under such terms as the parties to that agreement provide.

Sec. 8   RCW 36.70A.060 and 2005 c 423 s 3 are each amended to read as follows:
     (1)(a) ((Except as provided in RCW 36.70A.1701,)) Each county that is required or chooses to plan under RCW 36.70A.040, and each city within such county, shall adopt development regulations on or before September 1, 1991, to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170. Regulations adopted under this subsection may not prohibit uses legally existing on any parcel prior to their adoption and shall remain in effect until the county or city adopts development regulations pursuant to RCW 36.70A.040. Such regulations shall assure that the use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the continued use, in the accustomed manner and in accordance with best management practices, of these designated lands for the production of food, agricultural products, or timber, or for the extraction of minerals.
     (b) Counties and cities shall require that all plats, short plats, development permits, and building permits issued for development activities on, or within five hundred feet of, lands designated as agricultural lands, forest lands, or mineral resource lands, contain a notice that the subject property is within or near designated agricultural lands, forest lands, or mineral resource lands on which a variety of commercial activities may occur that are not compatible with residential development for certain periods of limited duration. The notice for mineral resource lands shall also inform that an application might be made for mining-related activities, including mining, extraction, washing, crushing, stockpiling, blasting, transporting, and recycling of minerals.
     (2) Each county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170. For counties and cities that are required or choose to plan under RCW 36.70A.040, such development regulations shall be adopted on or before September 1, 1991. For the remainder of the counties and cities, such development regulations shall be adopted on or before March 1, 1992. If critical areas designated under RCW 36.70A.170 are subject to a conservation easement agreement under chapter 64.-- RCW (sections 2 through 7 of this act) and the agreement contains provisions for habitat protection, restoration, or maintenance, the provisions of that agreement are presumed to satisfy the requirements of state law for the protection of critical areas if:
     (a) The agreement contains a conservation plan that has been reviewed by a conservation district and the district has determined that the applicable provisions of that plan, if implemented, meet or exceed the standards for conservation contained in the current applicable field office technical guides of the natural resources conservation service; or
     (b) The applicable provisions of the agreement meet or exceed the requirements for alternate conservation planning and habitat protection as provided in or required by local critical areas ordinances.
     (3) A county shall not adopt development regulations under this chapter that directly or indirectly preclude a property owner from being able to establish a conservation easement on a parcel or portion of a parcel of land, enter into an agreement to sell or transfer the development rights associated with a parcel or portion of a parcel of land, or qualify for or enroll a parcel or a portion of a parcel of land in any conservation reserve enhancement program or equivalent program that protects the natural resources and habitat areas and the future agricultural uses of that parcel.
     (4) Such counties and cities shall review these designations and development regulations when adopting their comprehensive plans under RCW 36.70A.040 and implementing development regulations under RCW 36.70A.120 and may alter such designations and development regulations to insure consistency.
     (((4))) (5) Forest land and agricultural land located within urban growth areas shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.

Sec. 9   RCW 36.70A.070 and 2005 c 360 s 2 are each amended to read as follows:
     The comprehensive plan of a county or city that is required or chooses to plan under RCW 36.70A.040 shall consist of a map or maps, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan. The plan shall be an internally consistent document and all elements shall be consistent with the future land use map. A comprehensive plan shall be adopted and amended with public participation as provided in RCW 36.70A.140.
     Each comprehensive plan shall include a plan, scheme, or design for each of the following:
     (1) A land use element designating the proposed general distribution and general location and extent of the uses of land, where appropriate, for agriculture, timber production, housing, commerce, industry, recreation, open spaces, general aviation airports, public utilities, public facilities, and other land uses. The land use element shall include population densities, building intensities, and estimates of future population growth. The land use element shall provide for protection of the quality and quantity of ground water used for public water supplies. Wherever possible, the land use element should consider utilizing urban planning approaches that promote physical activity. Where applicable, the land use element shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state, including Puget Sound or waters entering Puget Sound.
     (2) A housing element ensuring the vitality and character of established residential neighborhoods that: (a) Includes an inventory and analysis of existing and projected housing needs that identifies the number of housing units necessary to manage projected growth; (b) includes a statement of goals, policies, objectives, and mandatory provisions for the preservation, improvement, and development of housing, including single-family residences; (c) identifies sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multifamily housing, and group homes and foster care facilities; and (d) makes adequate provisions for existing and projected needs of all economic segments of the community.
     (3) A capital facilities plan element consisting of: (a) An inventory of existing capital facilities owned by public entities, showing the locations and capacities of the capital facilities; (b) a forecast of the future needs for such capital facilities; (c) the proposed locations and capacities of expanded or new capital facilities; (d) at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes; and (e) a requirement to reassess the land use element if probable funding falls short of meeting existing needs and to ensure that the land use element, capital facilities plan element, and financing plan within the capital facilities plan element are coordinated and consistent. Park and recreation facilities shall be included in the capital facilities plan element.
     (4) A utilities element consisting of the general location, proposed location, and capacity of all existing and proposed utilities, including, but not limited to, electrical lines, telecommunication lines, and natural gas lines.
     (5) Rural element. Counties shall include a rural element including lands that are not designated for urban growth, agriculture, forest, or mineral resources. The following provisions shall apply to the rural element:
     (a) Growth management act goals and local circumstances. Because circumstances vary from county to county, in establishing patterns of rural densities and uses, a county may consider local circumstances, but shall develop a written record explaining how the rural element harmonizes the planning goals in RCW 36.70A.020 and meets the requirements of this chapter.
     (b) Rural development. The rural element shall permit rural development, forestry, and agriculture in rural areas. The rural element shall provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses. To achieve a variety of rural densities and uses, counties may provide for clustering, density transfer, design guidelines, conservation easements, and other innovative techniques that will accommodate appropriate rural densities and uses that are not characterized by urban growth and that are consistent with rural character.
     (c) Measures governing rural development. The rural element shall include measures that apply to rural development and protect the rural character of the area, as established by the county, by:
     (i) Containing or otherwise controlling rural development;
     (ii) Assuring visual compatibility of rural development with the surrounding rural area;
     (iii) Reducing the inappropriate conversion of undeveloped land into sprawling, low-density development in the rural area;
     (iv) Protecting critical areas, as provided in RCW 36.70A.060, and surface water and ground water resources through programs that encourage and facilitate the voluntary use of conservation easements by property owners and state, county, or other agencies of local government for the preservation of existing agricultural lands and the protection of habitat and other natural resources on those lands; and
     (v) Protecting against conflicts with the use of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170.
     (d) Limited areas of more intensive rural development. Subject to the requirements of this subsection and except as otherwise specifically provided in this subsection (5)(d), the rural element may allow for limited areas of more intensive rural development, including necessary public facilities and public services to serve the limited area as follows:
     (i) Rural development consisting of the infill, development, or redevelopment of existing commercial, industrial, residential, or mixed-use areas, whether characterized as shoreline development, villages, hamlets, rural activity centers, or crossroads developments.
     (A) A commercial, industrial, residential, shoreline, or mixed-use area shall be subject to the requirements of (d)(iv) of this subsection, but shall not be subject to the requirements of (c)(ii) and (iii) of this subsection.
     (B) Any development or redevelopment other than an industrial area or an industrial use within a mixed-use area or an industrial area under this subsection (5)(d)(i) must be principally designed to serve the existing and projected rural population.
     (C) Any development or redevelopment in terms of building size, scale, use, or intensity shall be consistent with the character of the existing areas. Development and redevelopment may include changes in use from vacant land or a previously existing use so long as the new use conforms to the requirements of this subsection (5);
     (ii) The intensification of development on lots containing, or new development of, small-scale recreational or tourist uses, including commercial facilities to serve those recreational or tourist uses, that rely on a rural location and setting, but that do not include new residential development. A small-scale recreation or tourist use is not required to be principally designed to serve the existing and projected rural population. Public services and public facilities shall be limited to those necessary to serve the recreation or tourist use and shall be provided in a manner that does not permit low-density sprawl;
     (iii) The intensification of development on lots containing isolated nonresidential uses or new development of isolated cottage industries and isolated small-scale businesses that are not principally designed to serve the existing and projected rural population and nonresidential uses, but do provide job opportunities for rural residents. Rural counties may allow the expansion of small-scale businesses as long as those small-scale businesses conform with the rural character of the area as defined by the local government according to RCW 36.70A.030(((14))) (15). Rural counties may also allow new small-scale businesses to utilize a site previously occupied by an existing business as long as the new small-scale business conforms to the rural character of the area as defined by the local government according to RCW 36.70A.030(((14))) (15). Public services and public facilities shall be limited to those necessary to serve the isolated nonresidential use and shall be provided in a manner that does not permit low-density sprawl;
     (iv) A county shall adopt measures to minimize and contain the existing areas or uses of more intensive rural development, as appropriate, authorized under this subsection. Lands included in such existing areas or uses shall not extend beyond the logical outer boundary of the existing area or use, thereby allowing a new pattern of low-density sprawl. Existing areas are those that are clearly identifiable and contained and where there is a logical boundary delineated predominately by the built environment, but that may also include undeveloped lands if limited as provided in this subsection. The county shall establish the logical outer boundary of an area of more intensive rural development. In establishing the logical outer boundary the county shall address (A) the need to preserve the character of existing natural neighborhoods and communities, (B) physical boundaries such as bodies of water, streets and highways, and land forms and contours, (C) the prevention of abnormally irregular boundaries, and (D) the ability to provide public facilities and public services in a manner that does not permit low-density sprawl;
     (v) For purposes of (d) of this subsection, an existing area or existing use is one that was in existence:
     (A) On July 1, 1990, in a county that was initially required to plan under all of the provisions of this chapter;
     (B) On the date the county adopted a resolution under RCW 36.70A.040(2), in a county that is planning under all of the provisions of this chapter under RCW 36.70A.040(2); or
     (C) On the date the office of financial management certifies the county's population as provided in RCW 36.70A.040(5), in a county that is planning under all of the provisions of this chapter pursuant to RCW 36.70A.040(5).
     (e) Exception. This subsection shall not be interpreted to permit in the rural area a major industrial development or a master planned resort unless otherwise specifically permitted under RCW 36.70A.360 and 36.70A.365.
     (6) A transportation element that implements, and is consistent with, the land use element.
     (a) The transportation element shall include the following subelements:
     (i) Land use assumptions used in estimating travel;
     (ii) Estimated traffic impacts to state-owned transportation facilities resulting from land use assumptions to assist the department of transportation in monitoring the performance of state facilities, to plan improvements for the facilities, and to assess the impact of land-use decisions on state-owned transportation facilities;
     (iii) Facilities and services needs, including:
     (A) An inventory of air, water, and ground transportation facilities and services, including transit alignments and general aviation airport facilities, to define existing capital facilities and travel levels as a basis for future planning. This inventory must include state-owned transportation facilities within the city or county's jurisdictional boundaries;
     (B) Level of service standards for all locally owned arterials and transit routes to serve as a gauge to judge performance of the system. These standards should be regionally coordinated;
     (C) For state-owned transportation facilities, level of service standards for highways, as prescribed in chapters 47.06 and 47.80 RCW, to gauge the performance of the system. The purposes of reflecting level of service standards for state highways in the local comprehensive plan are to monitor the performance of the system, to evaluate improvement strategies, and to facilitate coordination between the county's or city's six-year street, road, or transit program and the department of transportation's six-year investment program. The concurrency requirements of (b) of this subsection do not apply to transportation facilities and services of statewide significance except for counties consisting of islands whose only connection to the mainland are state highways or ferry routes. In these island counties, state highways and ferry route capacity must be a factor in meeting the concurrency requirements in (b) of this subsection;
     (D) Specific actions and requirements for bringing into compliance locally owned transportation facilities or services that are below an established level of service standard;
     (E) Forecasts of traffic for at least ten years based on the adopted land use plan to provide information on the location, timing, and capacity needs of future growth;
     (F) Identification of state and local system needs to meet current and future demands. Identified needs on state-owned transportation facilities must be consistent with the statewide multimodal transportation plan required under chapter 47.06 RCW;
     (iv) Finance, including:
     (A) An analysis of funding capability to judge needs against probable funding resources;
     (B) A multiyear financing plan based on the needs identified in the comprehensive plan, the appropriate parts of which shall serve as the basis for the six-year street, road, or transit program required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems. The multiyear financing plan should be coordinated with the ((six-year)) ten-year improvement program developed by the department of transportation as required by RCW 47.05.030;
     (C) If probable funding falls short of meeting identified needs, a discussion of how additional funding will be raised, or how land use assumptions will be reassessed to ensure that level of service standards will be met;
     (v) Intergovernmental coordination efforts, including an assessment of the impacts of the transportation plan and land use assumptions on the transportation systems of adjacent jurisdictions;
     (vi) Demand-management strategies;
     (vii) Pedestrian and bicycle component to include collaborative efforts to identify and designate planned improvements for pedestrian and bicycle facilities and corridors that address and encourage enhanced community access and promote healthy lifestyles.
     (b) After adoption of the comprehensive plan by jurisdictions required to plan or who choose to plan under RCW 36.70A.040, local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a locally owned transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvements or strategies to accommodate the impacts of development are made concurrent with the development. These strategies may include increased public transportation service, ride sharing programs, demand management, and other transportation systems management strategies. For the purposes of this subsection (6) "concurrent with the development" shall mean that improvements or strategies are in place at the time of development, or that a financial commitment is in place to complete the improvements or strategies within six years.
     (c) The transportation element described in this subsection (6), and the six-year plans required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems, and the ten-year plans required by RCW 47.05.030 for the state, must be consistent.
     (7) An economic development element establishing local goals, policies, objectives, and provisions for economic growth and vitality and a high quality of life. The element shall include: (a) A summary of the local economy such as population, employment, payroll, sectors, businesses, sales, and other information as appropriate; (b) a summary of the strengths and weaknesses of the local economy defined as the commercial and industrial sectors and supporting factors such as land use, transportation, utilities, education, work force, housing, and natural/cultural resources; and (c) an identification of policies, programs, and projects to foster economic growth and development and to address future needs. A city that has chosen to be a residential community is exempt from the economic development element requirement of this subsection.
     (8) A park and recreation element that implements, and is consistent with, the capital facilities plan element as it relates to park and recreation facilities. The element shall include: (a) Estimates of park and recreation demand for at least a ten-year period; (b) an evaluation of facilities and service needs; and (c) an evaluation of intergovernmental coordination opportunities to provide regional approaches for meeting park and recreational demand.
     (9) It is the intent that new or amended elements required after January 1, 2002, be adopted concurrent with the scheduled update provided in RCW 36.70A.130. Requirements to incorporate any such new or amended elements shall be null and void until funds sufficient to cover applicable local government costs are appropriated and distributed by the state at least two years before local government must update comprehensive plans as required in RCW 36.70A.130.

NEW SECTION.  Sec. 10   Sections 8 and 9 of this act may not be construed to diminish, modify, or replace any other remedy provided under the United States or Washington state Constitutions, or federal or state law.

NEW SECTION.  Sec. 11   Sections 2 through 7 of this act constitute a new chapter in Title 64 RCW.